II

103D CONGRESS

2D SESSION S. 2506

Entitled ‘‘Wetlands Regulatory Reform Act of 1995’’.

IN THE SENATE OF THE UNITED STATES

OCTOBER 5 (legislative day, SEPTEMBER 12), 1994

Mr. JOHNSTON introduced the following bill; which was read twice and

referred to the Committee on Environment and Public Works

A BILL

Entitled ‘‘Wetlands Regulatory Reform Act of 1995’’.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Wetlands Regulatory

5 Reform Act of 1995’’.

6 SEC. 2. FINDINGS AND DECLARATION OF POLICIES AND

7 GOALS.

8 (a) FINDINGS.—The Congress finds that—

9 (1) wetlands served important ecological and

10 natural resource functions, such as providing essen11 tial nesting and feeding habitat for waterfowl, other

12 wildlife, and many rare and endangered species, fish-
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1 eries habitat, the enhancement of water quality, and

2 natural flood control;

3 (2) much of the Nation’s resource has sustained

4 significant degradation, resulting in the need for ef5 fective programs to limit the loss of ecologically sig6 nificant wetlands and to provide for long-term res7 toration and enhancement of the wetlands resource

8 base; and

9 (3) because 75 percent of the Nation’s wetlands

10 in the lower forty-eight States are privately owned

11 and because the majority of the Nation’s population

12 lives in or near wetlands areas, an effective wetlands

13 conservation and management program must reflect

14 a balanced approach that conserves and enhances

15 ecologically significant wetlands functions while re16 specting private property rights, recognizing the

17 need for essential public infrastructure, such as

18 highways, utilities, ports, airports, sewer system, and

19 public water supply systems, and the need to pre20 serve strong local tax bases, and providing the op21 portunity for sustained economic growth.

22 (b) DECLARATION OF POLICIES AND GOALS.—Sec23 tion 101(a) (33 U.S.C. 1251(a)) is amended—

24 (1) by striking ‘‘and’’ at the end of paragraph

25 (6);
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1 (2) by striking the period at the end of para2 graph (7) and inserting a semicolon; and

3 (3) by adding at the end the following:

4 ‘‘(8) it is the national policy that the Federal

5 wetlands permitting program under section 404 of

6 the Federal Water Pollution Control Act shall be im7 plemented to protect ecologically significant wetlands

8 while avoiding the diminishment of the use and

9 value of privately-owned property.’’.

10 SEC. 3. BALANCED IMPLEMENTATION OF PROGRAM TO

11 CONSERVE WETLANDS WHILE PROTECTING

12 PRIVATE PROPERTY RIGHTS.

13 Section 404 (33 U.S.C. 1344) is amended by adding

14 at the end the following new subsection:

15 ‘‘(u) BALANCED IMPLEMENTATION.—

16 ‘‘(1) In implementing their responsibilities

17 under the regulatory program under this section, the

18 Secretary and the Administrator shall balance the

19 objective of conserving functioning wetlands with the

20 objective of ensuring continued economic growth,

21 providing essential infrastructure, maintaining

22 strong State and local tax bases, and protecting

23 against the diminishment of the use and value of

24 privately-owned property.
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1 ‘‘(2) In carrying out this section, the Secretary

2 and the Administrator and all other Federal agen3 cies and officials of the Federal Government shall

4 seek in all actions to minimize the adverse effects of

5 the regulatory program under this section on the use

6 and value of privately-owned property.’’.

7 SEC. 4. DEFINITION AND DELINEATION OF WETLANDS.

8 (a) Section 404 is amended by adding at the end the

9 following new subsection:

10 ‘‘(v) DEFINITIONS.—For purposes of this section, the

11 term—

12 ‘‘(1) ‘wetlands’ means those areas that are in13 undated or saturated by surface or groundwater at

14 a frequency and duration sufficient to support, and

15 that under normal circumstances do support, a prev16 alence of vegetation typically adapted for life in

17 saturated soil conditions. Wetlands generally include

18 swamps, marshes, bogs, fens, potholes, playa lakes,

19 vernal pools, and similar areas;

20 ‘‘(2) ‘Secretary’ means the Secretary of the

21 Army, acting through the Chief of Engineers; and

22 ‘‘(3) ‘Administrator’ means the Administrator

23 of the Environmental Protection Agency.’’.

24 (b) Section 404(a) (33 U.S.C. 1344(a)) is amended—

25 (1) by inserting ‘‘(1)’’ after ‘‘(b)’’;
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1 (2) by redesignating paragraphs (1) and (2) as

2 subparagraphs (A) and (B);

3 (3) by striking ‘‘clause (1)’’ and inserting in

4 lieu thereof ‘‘subparagraph (A)’’; and

5 (4) by adding at the end the following new

6 paragraphs:

7 ‘‘(2) REVISIONS TO DELINEATION PROCE8 DURES.—

9 ‘‘(A) IN GENERAL.—After the date of en10 actment of this Act, no revisions to or clarifica11 tions of the guidelines for identifying and delin12 eating wetlands areas under this subsection

13 shall be issued until the National Academy of

14 Sciences has completed the study of wetlands

15 authorized by the Department of Veterans Af16 fairs and Housing and Urban Development, and

17 Independent Agencies Appropriations Act, 1993

18 (Public Law 102–389).

19 ‘‘(B) REVISIONS.—Within 18 months of

20 the completion of the study required under sub21 paragraph (A), the Administrator shall review

22 the results of the study and, in consultation

23 with the Secretary, the Secretary of Agri24 culture, the Secretary of the Interior, and the

25 States, revise the guidelines referenced in sub-
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1 paragraph (A) in accordance with subparagraph

2 (E), and as is otherwise necessary.

3 ‘‘(C) PROMULGATION OF REGULATIONS.—

4 Revision of the guidelines referenced in sub5 paragraph (A), along with those portions of the

6 guidelines that the Administrator does not pro7 pose to revise, shall, after public notice and op8 portunity for comment, be issued (in accordance

9 with section 553 of title 5 of the United States

10 Code and as otherwise required under this sec11 tion) as final rules and regulations. In carrying

12 out the provisions of this subparagraph, public

13 hearings shall be held in geographic areas of

14 the Nation that contain significant areas of

15 wetlands.

16 ‘‘(D) Notwithstanding subparagraph (C),

17 regulations adopted pursuant to this paragraph

18 shall be submitted to the relevant authorizing

19 committees of the House of Representatives and

20 the Senate and shall not become effective until

21 the 181st day after such submission.

22 ‘‘(E) The regulations promulgated pursu23 ant to this paragraph shall provide that, except

24 in the limited instances identified in the Corps

25 of Engineers Wetlands Delineation Manual is-
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1 sued in January 1987 (Technical Report Y–87–

2 1) and implementing guidelines, in order to

3 make a positive wetland delineation determina4 tion, clear evidence of wetlands hydrology,

5 hydrophytic vegetation, and hydric soil must be

6 found to be present during the period in which

7 the delineation is made.

8 ‘‘(3) CONTINUED USE OF 1987 MANUAL.—

9 ‘‘(A) IN GENERAL.—Until such regulations

10 are promulgated, the Secretary, acting through

11 the Chief of Engineers, shall use the Corps of

12 Engineers Wetlands Delineation Manual issued

13 in January 1987 (Technical Report Y–87–1)

14 and implementing guidelines to identify and de15 lineate wetlands areas.

16 ‘‘(4) AGRICULTURAL LANDS.—

17 ‘‘(A) IN GENERAL.—For purposes of this

18 section, wetlands located on agricultural lands

19 and associated non-agricultural lands shall be

20 delineated by the Secretary of Agriculture in

21 accordance with section 1222(j) of the Food Se22 curity Act of 1985 (16 U.S.C. 3822(j)).

23 ‘‘(B) CONSISTENCY.—Any area of agricul24 tural land or any activities related to the land

25 determined to be exempt from the requirements
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1 of subtitle C of title XII of the Food Security

2 Act of 1985 (16 U.S.C. 3821 et seq.) shall also

3 be exempt from the requirements of this section

4 for such period of time as those lands are used

5 as agricultural lands.

6 ‘‘(C) DEFINITION.—For purposes of this

7 section, the term ‘agricultural lands’ means

8 cropland, pastureland, native pasture, range9 land, orchards, vineyards, nonindustrial forest

10 land, and any other land used to produce or

11 support the production of an annual or peren12 nial crop of a commodity, aquaculture product,

13 nursery product, or livestock.’’

14 SEC. 5. WETLANDS CLASSIFICATIONS.

15 Section 404(d) (33 U.S.C. 1344(d)) is amended by

16 striking all therein and by inserting in lieu thereof the

17 following:

18 ‘‘(d) WETLANDS CLASSIFICATION.—(1) The Admin19 istrator, with the assistance of the Secretary, and in con20 sultation with the Secretary of the Department of Agri21 culture, the Secretary of the Department of the Interior,

22 and the States, shall undertake a project to classify wet23 lands in the United States. Such classification project

24 shall be completed not later than ten years after the date

25 of enactment of this Act. In undertaking such project, pri-
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1 ority shall be given to requests for classification under

2 paragraph (4).

3 ‘‘(2) In conducting the project under this section, the

4 classification of wetlands shall be based upon the best rea5 sonably obtainable scientific information, including the re6 sults of the National Academy of Sciences study of wet7 lands authorized by the Departments of Veterans Affairs

8 and Housing and Urban Development, and Independent

9 Agencies Appropriations Act, 1993 (Public Law 102–

10 389). Wetlands shall be classified as either Class A, Class

11 B, or Class C, depending on their relative ecological sig12 nificance, taking into account regional variations in hy13 drology, soils, and vegetation, as follows—

14 ‘‘(A) Class A wetlands are those wetlands—

15 ‘‘(i) which serve critical wetlands functions,

16 including the provision of critical habitat for a

17 concentration of avian, aquatic, or wetland-de18 pendent wildlife;

19 ‘‘(ii) which consist of or may be a portion

20 of ten or more contiguous acres and have an

21 inlet or outlet for relief of water flow; except

22 that this requirement shall not operate to pre23 clude the classification as Class A wetlands

24 lands containing prairie pothole features, playa

25 lakes, or vernal pools if such lands otherwise
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1 meet the requirements for Class A classification

2 under this paragraph;

3 ‘‘(iii) for which there exists a scarcity of

4 functioning wetlands within the watershed or

5 aquatic ecosystem such that the discharge of

6 dredged or fill material into such wetlands

7 would seriously jeopardize the availability of the

8 wetlands functions identified in clause (i); and

9 ‘‘(iv) for which there is no overriding pub10 lic interest in the use of such wetlands for pur11 poses other than those served by wetlands;

12 ‘‘(B) Class B wetlands are those wetlands that

13 provide habitat for a significant population of avian,

14 aquatic, or wetland-dependent wildlife, or provide

15 other significant wetlands functions, including sig16 nificant enhancement or protection of water quality,

17 or significant natural flood control; and

18 ‘‘(C) Class C wetlands are those wetlands

19 that—

20 ‘‘(i) serve marginal wetlands functions that

21 exist in such abundance that regulation of ac22 tivities in such wetlands is not necessary to con23 serve important wetlands functions;

24 ‘‘(ii) are within industrial complexes or

25 other intensely developed areas that do not
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1 serve significant wetlands functions as a result

2 of such location; or

3 ‘‘(iii) are located behind legally constituted,

4 man-made structures or natural formations,

5 such as levees constructed and maintained to

6 permit the utilization of such lands for commer7 cial, industrial, or residential purposes consist8 ent with local land use planning requirements.

9 ‘‘(3) In conducting the classification project under

10 this section, there shall be a public hearing in each county,

11 parish, or borough of a State before completion of wet12 lands classification in such county, parish, or borough.

13 Promptly after completion of wetlands classification in a

14 county, parish, or borough, a map or maps indicating the

15 classification of such wetlands shall be made available to

16 the public in the building within the county, parish, or

17 borough that contains property records, and shall be filed

18 with such property records, and notice of same shall be

19 published in the Federal Register and in publications of

20 wide circulation in such county, parish, or borough.

21 ‘‘(4) Until the classification process has been com22 pleted with respect to wetlands within a particular county,

23 parish, or borough, any person seeking a classification of

24 such wetlands may file a request with the Secretary, iden25 tifying the site of the wetlands and requesting the Sec-
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1 retary to determine the classification of such wetlands.

2 The requestor shall provide such additional information as

3 may be necessary for purposes of determining the classi4 fication of such wetlands.

5 ‘‘(5) Within 90 days following receipt of a request

6 for classification under paragraph (4), the Secretary shall

7 notify the requestor of the classification of the wetlands

8 that are the subject of such request and shall state in writ9 ing the basis for such classification. The classification of

10 the wetlands that are the subject of the request shall be

11 determined by the Secretary in accordance with this sub12 section and the regulations promulgated pursuant thereto.

13 ‘‘(6) Not later than 1 year after the date of enact14 ment of this Act, the Administrator, with the assistance

15 of the Secretary, shall issue regulations implementing this

16 subsection. Until such regulations are issued, the Sec17 retary shall classify wetlands in response to a request for

18 classification under paragraph (4), or as part of the per19 mitting process pursuant to subsection (a).’’.

20 SEC. 6. ACTIVITIES REGULATED.

21 Section 404(a) (33 U.S.C. 1344(a)) is amended—

22 (1) by striking ‘‘(a) The Secretary’’ and insert23 ing the following:

24 ‘‘(a) IN GENERAL.—

25 ‘‘(1) ISSUANCE OF PERMITS.—The Secretary’’;
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1 (2) by adding at the end the following new

2 paragraph:

3 ‘‘(2) For purposes of this section, the discharge

4 of dredged or fill material into waters of the United

5 States includes the draining, channelization, and ex6 cavation of wetlands.’’.

7 SEC. 7. PERMIT METHODOLOGY.

8 Section 404(a) (33 U.S.C. 1344(a)) is further

9 amended by adding at the end the following new para10 graphs:

11 ‘‘(3)(A) The Secretary shall determine whether

12 to issue a permit for the discharge of dredged or fill

13 material into wetlands classified pursuant to sub14 section (d) as Class A wetlands based on a sequen15 tial analysis that seeks to—

16 ‘‘(i) avoid adverse effects on such wetlands,

17 ‘‘(ii) minimize such adverse effects that

18 cannot be avoided, and

19 ‘‘(iii) mitigate any adverse effects that can20 not be avoided and that remain after minimiza21 tion.

22 Any permit authorizing the discharge of dredged or

23 fill material in Class A wetlands may contain such

24 terms and conditions concerning mitigation that the
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1 Secretary deems appropriate to prevent the unac2 ceptable loss or degradation of Class A wetlands.

3 ‘‘(B) The Secretary shall determine whether to

4 issue a permit to authorize discharges of dredged or

5 fill material in wetlands classified pursuant to sub6 section (d) as Class B wetlands pursuant to a public

7 interest review. Such public interest review shall bal8 ance the reasonably foreseeable benefits and det9 riments resulting from issuance of the permit, based

10 on such factors as economic growth, the need for

11 fish and wildlife habitat, water supply and conserva12 tion, water quality, infrastructure needs, energy

13 needs, mineral needs, food production, recreation,

14 and considerations of private property ownership.

15 The Secretary may condition such permit as nec16 essary to ensure that the watershed or aquatic eco17 system of which such wetlands are a part does not

18 suffer significant loss or degradation of wetlands

19 functions.

20 ‘‘(C) No permit from the Secretary shall be re21 quired with respect to the discharge of dredged or

22 fill material on wetlands classified pursuant to sub23 section (d) as Class C wetlands. A State may require

24 a permit with respect to discharges in Class C wet25 lands if such State deems it appropriate, along with
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1 such terms and conditions as such State may im2 pose.’’.

3 SEC. 8. REQUIRE CONSULTATION BETWEEN EPA AND THE

4 CORPS; REPEAL AUTHORITY OF EPA TO VETO

5 CORPS PERMITTING DECISIONS.

6 Section 404(c) (33 U.S.C. 1344(c)) is amended to

7 read as follows: ‘‘The Secretary shall consult with the Ad8 ministrator regarding whether the discharge of such mate9 rial at the specified disposal site would have an unaccept10 able adverse effect on municipal water supplies, shellfish

11 beds and fishery areas (including spawning and breeding

12 areas), wildlife, or recreational areas.’’.

13 SEC. 9. EXTENSIONS OF TIME AND THE CONSEQUENCES OF

14 FAILURE BY THE SECRETARY TO MAKE A DE15 CISION.

16 Section 404(a) (33 U.S.C. 1334(a) is further

17 amended—

18 (1) by adding at the end of paragraph (1) (as

19 so designated) the following new sentence: ‘‘The Sec20 retary shall request from the applicant any addi21 tional information to complete the application not

22 later than 60 days after the Secretary receives the

23 application.’’; and

24 (2) by adding at the end the following new

25 paragraphs:
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1 ‘‘(3) DATE OF DECISION BY SECRETARY.—

2 Execpt as provided in paragraph (4), the Secretary

3 shall make a decision with respect to an application

4 for a permit submitted under paragraph (1) not

5 later than 90 days after the completed application is

6 submitted.

7 ‘‘(4) EXTENSION.—The decision of the Sec8 retary with respect to an application for a permit

9 under paragraph (1) may be made after the date

10 specified in paragraph (3) only if—

11 ‘‘(A) with respect to issuance of the per12 mit, the Secretary is required under the Na13 tional Environmental Policy Act of 1969 (42

14 U.S.C. 4321 et seq.) to issue an environmental

15 impact statement, in which case the decision

16 shall be made not later than 30 days after the

17 date on which the requirements of such Act are

18 met;

19 ‘‘(B) the permit application involves an ac20 tivity that may affect any species that is listed

21 or proposed for listing or any critical habitat

22 that is designated or proposed for designation

23 under the Endangered Species Act of 1973 (16

24 U.S.C. 1531 et seq.), in which case the decision

25 shall be made not later than 30 days after the
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1 date on which the requirements of such Act are

2 met, as determined by the Secretary of the In3 terior, or the Secretary of Commerce, whomever

4 is appropriate;

5 ‘‘(C) the Administrator, the Secretary of

6 Agriculture, the Secretary of the Interior, the

7 Secretary of Commerce, or the Secretary of

8 Transportation, the head of any other appro9 priate Federal agency, or the Governor of the

10 State in which the activity occurs requests that

11 the Secretary of the Army or the Secretary of

12 Agriculture, as the case may be, grant an ex13 tension beyond the date specified in paragraph

14 (3) and such Secretary grants such request in

15 writing, in which case the decision shall be

16 made not later than 150 days after the com17 plete application is submitted;

18 ‘‘(D) the Secretary and the applicant for

19 the permit determine that additional time is

20 needed to evaluate the application; or

21 ‘‘(E) the decision is precluded as a matter

22 of law or procedures required by law.

23 ‘‘(5) CONSEQUENCES OF FAILURE BY THE SEC24 RETARY TO MAKE A DECISION.—If the Secretary

25 fails to make a decision by the date specified in
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1 paragraph (3) or (4), as the case may be, the permit

2 shall be deemed granted.’’.

3 SEC. 10. GENERAL PERMIT IMPROVEMENTS.

4 Section 404(e) (33 U.S.C. 1344(e)) is amended—

5 (1) by adding after ‘‘minimal’’ in the first place

6 it appears, ‘‘or temporary’’; and

7 (2) by adding at the end the following new

8 paragraphs:

9 ‘‘(3) STATE PROGRAMS.—Upon the request of a

10 State, regional, local, or Tribal governmental body

11 with an existing wetlands regulatory program, the

12 Secretary shall issue a general permit for such pro13 gram if the non-Federal regulatory program—

14 ‘‘(A) has jurisdiction over the activities

15 and water within the scope of the requested

16 general permit;

17 ‘‘(B) provides adequate safeguards to en18 sure that it will provide at least the same de19 gree of protection for the navigable waters as

20 the protection provided by this section;

21 ‘‘(C) provides at least the same oppor22 tunity for public review, comment, and hearings

23 as the opportunity provided by this section; and

24 ‘‘(D) provides an opportunity for the Sec25 retary, in cooperation with the Administrator,
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1 the Secretary of the Interior (acting through

2 the Director of the United States Fish and

3 Wildlife Service), and the Secretary of Com4 merce (acting through the Administrator of the

5 National Oceanic and Atmospheric Administra6 tion) to conduct periodic reviews of permit deci7 sions made under the non-Federal program in

8 order to ensure that the requirements of this

9 subsection are met.

10 The provisions of this paragraph shall not apply to

11 general permits issued by the Secretary for linear

12 utility facilities, and such linear utility facilities shall

13 continue to be regulated by the Secretary.

14 ‘‘(4) CONSISTENCY WITH SWAMPBUSTER.—A

15 general permit may be issued for discharges of

16 dredged or fill material associated with activities

17 found by the Secretary of Agriculture, in consulta18 tion with the Secretary of the Interior acting

19 through the Director of the United States Fish and

20 Wildlife Service, to be exempted from the ineligibility

21 provisions of section 1221 of the Food Security Act

22 of 1985 (16 U.S.C. 3821) pursuant to subsections

23 (f) and (h) of section 1222 of such Act (16 U.S.C.

24 3822) if the general permit—
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1 ‘‘(A) provides adequate safeguards to en2 sure that the activities exempted will have no

3 more than minimal individual and cumulative

4 impacts on the environment; and

5 ‘‘(B) includes provisions to provide an op6 portunity for the Secretary and the Adminis7 trator to conduct periodic reviews of permit de8 cisions made by the Secretary of Agriculture to

9 ensure that the terms and conditions of the

10 general permit and the requirements of this

11 subsection are met.

12 ‘‘(5) GRANTS FOR STATE, REGIONAL, LOCAL

13 AND TRIBAL PROGRAMS.—The Secretary and the

14 Administrator may make a grant to a State, Tribal,

15 regional, or local governmental body for the oper16 ation of a regulatory program with respect to which

17 a general permit has been issued pursuant to this

18 subsection. The aggregate amount of such grants

19 may not exceed the amount made available by ap20 propriations to the Secretary or the Administrator to

21 carry out this section with respect to State, Tribal,

22 regional, or local governmental bodies.’’.

23 SEC. 11. EXEMPT ACTIVITIES.

24 (a) Paragraph (1) of section 404(f) (33 U.S.C.

25 1344(f)(1)) is amended to read as follows:
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1 ‘‘(f)(1) EXEMPT ACTIVITIES.—Except as provided in

2 paragraph (2) of this subsection, the discharge of dredged

3 or fill material is exempted from regulation under this sec4 tion, section 301(a) and 402 of this Act (except for efflu5 ent standards or prohibitions under section 307) if it is—

6 ‘‘(A) from normal farming, silviculture, and

7 ranching activities, such as haying, grazing, plowing,

8 seeding, cultivating, minor drainage, harvesting for

9 production of food, fiber, and forest products, or up10 land soil and water conservation practices;

11 ‘‘(B) for the purpose of maintaining, including

12 emergency reconstruction of recently damaged parts,

13 of currently serviceable structures such as dikes,

14 dams, levees, groins, riprap, breakwaters, water con15 veyances, linear utility facilities, causeways, bridge

16 abutments or approaches, and transportation struc17 tures;

18 ‘‘(C) for the purpose of constructing or main19 taining farm or stock ponds or irrigation ditches, or

20 the maintenance of drainage ditches or spreading

21 areas for groundwater recharge;

22 ‘‘(D) for the purpose of constructing temporary

23 sedimentation basins on a construction site that does

24 not involve a discharge of fill material into navigable

25 waters;
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1 ‘‘(E) for the purpose of constructing or main2 taining farm roads or forest roads, or temporary

3 roads for moving mining equipment, or access roads

4 for linear utility facilities, or access roads to, or

5 within, drinking water treatment plants, if the roads

6 are constructed and maintained, in accordance with

7 best management practices, to ensure that—

8 ‘‘(i) flow and circulation patterns and

9 chemical and biological characteristics of the

10 navigable waters are not impaired;

11 ‘‘(ii) the reach of the navigable waters is

12 not reduced; and

13 ‘‘(iii) any adverse effect on the aquatic en14 vironment will otherwise be minimized;

15 ‘‘(F) resulting from any activity with respect to

16 which a State has a program approved by the Ad17 ministrator under section 208(b)(4) that meets the

18 requirements of subparagraphs (B) and (C) of such

19 section;

20 ‘‘(G) undertaken in connection with a marsh

21 management and conservation program in a coastal

22 county, parish, or borough, where such program has

23 been approved by the Governor of the State or the

24 designee of the Governor;
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1 ‘‘(H) into tightly sealed forms or cells where the

2 material will be used as a structural member for

3 standard pile supported structures, such as piers

4 and docks, and for linear projects such as bridges,

5 transmission and distribution line footings, and

6 walkways;

7 ‘‘(I) for the placement of pilings in waters of

8 the United States in circumstances involving linear

9 projects such as bridges, elevated walkways, or

10 powerline structures, or that involve structures such

11 as piers, boathouses, wharves, marinas, lighthouses

12 and individual houses built on stilts solely to reduce

13 the potential of flooding;

14 ‘‘(J) for the clearing of vegetation (i) within

15 rights-of-way associated with the development and

16 maintenance of linear utility projects, including elec17 tric power transmission and distribution lines, petro18 leum product and naturals gas pipelines, and water

19 and sewer lines, or (ii) from reservoirs used pri20 marily for storage of drinking water where the con21 struction of the reservoirs was authorized pursuant

22 to this section, or where the construction of res23 ervoirs predates the requirement for the authoriza24 tion;
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1 ‘‘(K) undertaken on farmed wetlands, except

2 that any change in use of such land for the purpose

3 of undertaking activities that are not exempt from

4 regulation under this subsection shall be subject to

5 the requirements of this section to the extent that

6 such farmed wetlands are ‘wetlands’ under sub7 section (d) of this section;

8 ‘‘(L) undertaken on lands or involve activities

9 within a State’s coastal zone which are excluded

10 from regulation under a State coastal zone manage11 ment program approved under the Coastal Zone

12 Management Act of 1972 (16 U.S.C. 1451, et seq.);

13 ‘‘(M) undertaken in incidentally-created wet14 lands that have exhibited wetlands functions for less

15 than 5 years;

16 ‘‘(N) part of expanding an ongoing farming op17 eration involving the water-dependent, obligate crop

18 Vaccinium macrocarpin, so long as such expansion

19 does not occur in Class A wetlands, does not result

20 of in the conversion of more than ten acres of wet21 lands per operator per year, and the converted wet22 lands (other than where dikes and other necessary

23 facilities are placed) remain as wetlands or other wa24 ters of the United States;
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1 ‘‘(O) from aggregate or clay mining activities in

2 wetlands if such activities are conducted pursuant to

3 a State or Federal permit that requires (i) that rec4 lamation of such affected wetlands to be completed

5 within five years of the commencement of such ac6 tivities, and (ii) that such wetlands be reclaimed to

7 a condition capable of supporting wetlands functions

8 substantially equivalent to the functions supported

9 by such wetlands at the time of commencement of

10 such activities; or

11 ‘‘(P) for the purpose of preserving and enhanc12 ing aviation safety or undertaken in order to prevent

13 an airport hazard.’’.

14 (b) EXEMPTED AREAS.—Section 404(f) is further

15 amended by adding at the end the following new para16 graph:

17 ‘‘(3) EXEMPTED AREAS.—For purposes of this

18 section, the following shall not be considered to be

19 navigable waters—

20 ‘‘(A) nontidal drainage and irrigation

21 ditches excavated in uplands;

22 ‘‘(B) artificially irrigated areas which

23 would revert to uplands if the irrigation ceased;

24 ‘‘(C) artificial lakes or ponds created by

25 excavating or diking uplands to collect and re-
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1 tain water, and that are used primarily for

2 stock watering, irrigation, agricultural settling

3 ponds, fire control, cranberry growing, or rice

4 growing;

5 ‘‘(D) artificial reflecting or swimming pools

6 or other small ornamental bodies of water cre7 ated by excavating or diking uplands to retain

8 water for primarily aesthetic reasons;

9 ‘‘(E) waterfilled depressions created in up10 lands incidental to construction activity and pits

11 excavated in uplands for the purpose of obtain12 ing fill, sand, gravel, aggregates or minerals,

13 unless and until the construction or excavation

14 operation is abandoned and the resulting body

15 of water meets the definition of navigable

16 waters;

17 ‘‘(F) artificial stormwater detention areas

18 and artificial sewage treatment areas that are

19 not modifications of navigable waters;

20 ‘‘(G) prior converted croplands; and

21 ‘‘(H) confined dredged material disposal

22 areas constructed in uplands.’’.

23 SEC. 12. STATE PROGRAMS.

24 (a) STANDARDS FOR STATE DELEGATION.—Sub25 section (h)(2) of section 404 (33 U.S.C. 1344(h)(2)) is
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1 amended by adding the following at the end: ‘‘The Admin2 istrator shall approve a State program submitted under

3 subsection (g)(1) that is developed to meet the particular

4 needs and circumstances of such State, provided that the

5 level of wetlands protection provided by the State program

6 is substantially similar to the protection provided by this

7 section.’’

8 (b) FEDERAL OVERSIGHT OF STATE PROGRAMS.—

9 Subsection (i) of section 404 (33 U.S.C. 1344(i)) is

10 amended by adding the following at the end: ‘‘Not later

11 than 5 years after the date of the approval of a State pro12 gram, and every 5 years thereafter, in order to ensure that

13 the requirements of this section are met, the Adminis14 trator, in cooperation with the Secretary and the Secretary

15 of the Interior (acting through the Director of the United

16 States Fish and Wildlife Service), shall conduct a periodic

17 review of permit decisions made by a State that carries

18 out a program that is approved by the Administrator

19 under subsection (h)(2). The Secretary and the Adminis20 trator may make a grant to a State for the operation of

21 a program that is approved by the Administrator pursuant

22 to subsection (h)(2). The aggregate amount of such grants

23 may not exceed the amount that is made available by ap24 propriations to the Secretary or the Administrator to carry

25 out this section with respect to State programs.’’.
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1 (c) The last four sentences of section 404(j) (33

2 U.S.C. 1344(j)) are hereby repealed.

3 SEC. 13. MITIGATION BANKS.

4 Section 404 (33 U.S.C. 1344) is amended by adding

5 at the end the following new subsection:

6 ‘‘(w) MITIGATION BANKS.—

7 ‘‘(1) ESTABLISHMENT.—

8 ‘‘(A) IN GENERAL.—Not later than 1 year

9 after the date of enactment of this subsection,

10 after providing notice and opportunity for pub11 lic review and comment, the Secretary shall

12 issue regulations for the establishment, use,

13 maintenance, and oversight of mitigation banks.

14 The regulations shall be developed in consulta15 tion with the Administrator and the Secretary

16 of the Interior, acting through the Director of

17 the United States Fish and Wildlife Service.

18 ‘‘(B) PROVISIONS AND REQUIREMENTS.—

19 The regulations issued pursuant to subpara20 graph (A) shall ensure that mitigation banks—

21 ‘‘(i) comply with the guidelines estab22 lished under subsection (b)(1);

23 ‘‘(ii) to the extent practicable and en24 vironmentally desirable, provide in-kind re25 placement of lost wetlands functions, and
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1 be located in, or in proximity to, the same

2 watershed as the affected wetlands;

3 ‘‘(iii) be operated by an entity which

4 has the financial capability to meet the re5 quirements of this section, including the

6 deposit of a performance bond or other ap7 propriate demonstration of financial re8 sponsibility to support the long-term main9 tenance of the bank, specify responsibilities

10 for long-term monitoring, maintenance,

11 and protection, and provide for the long12 term security of ownership interests of

13 wetlands and uplands on which projects

14 are conducted to protect the wetlands func15 tions associated with the mitigation banks;

16 ‘‘(iv) employ consistent and scientif17 ically sound methods to determine debits

18 by evaluating wetlands functions, project

19 impacts, and duration of the impact at the

20 sites of proposed permits for discharges of

21 dredged or fill material pursuant to this

22 section, and to determine credits based on

23 wetlands functions at the sites of mitiga24 tion banks;
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1 ‘‘(v) provide for the transfer of credits

2 for mitigation that has been performed and

3 for mitigation that shall be performed

4 within a designated time in the future,

5 provided that financial bonds shall be post6 ed in sufficient amount to ensure that the

7 mitigation will be performed in the case of

8 default; and

9 ‘‘(vi) provide opportunity for public

10 notice of, and comment on, proposals for

11 mitigation banks: Provided, That the proc12 ess utilized by a mitigation bank to obtain

13 a permit under this section satisfies the re14 quirement for such public notice and com15 ment.

16 ‘‘(2) MITIGATION BANK DEFINED.—As used in

17 this section, the term ‘mitigation bank’ means a wet18 lands restoration, creation, enhancement, or preser19 vation project undertaken by one or more parties, in20 cluding private and public entities, expressly for the

21 purpose of providing mitigation compensation credits

22 to offset wetlands losses authorized by the terms of

23 permits allowing discharges of dredged or fill mate24 rial into the navigable waters.’’.
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1 SEC. 14. ADMINISTRATIVE APPEALS PROCESS.

2 Section 404 (33 U.S.C. 1344) is amended by adding

3 at the end the following new subsection:

4 ‘‘(x) ADMINISTRATIVE APPEALS.—

5 ‘‘(1) IN GENERAL.—Not later than 1 year after

6 the date of enactment of this subsection, the Sec7 retary shall, after providing notice and opportunity

8 for public comment, issue regulations establishing

9 procedures pursuant to which—

10 ‘‘(A) a landowner may appeal a determina11 tion of regulatory jurisdiction under this section

12 with respect to a parcel of property;

13 ‘‘(B) any person may appeal a determina14 tion that the proposed activity is not exempt

15 under subsection (f);

16 ‘‘(C) a landowner may appeal a determina17 tion that an activity is not regulated under a

18 general permit issued under this section;

19 ‘‘(D) an applicant for a permit under this

20 section may appeal a determination made pur21 suant to this section to deny issuance of the

22 permit or to impose a requirement under the

23 permit; and

24 ‘‘(E) a landowner or any other person re25 quired to restore or otherwise alter a parcel of
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1 property pursuant to an order issued under this

2 section may appeal such order.

3 ‘‘(2) FILING DEADLINE.—An appeal brought

4 pursuant to this subsection shall be filed not later

5 than 30 days after the date on which written notice

6 of the decision or action that is the subject of the

7 appeal is received, or is deemed received, by the

8 party filing the appeal.

9 ‘‘(3) DECISION DEADLINE.—An appeal brought

10 pursuant to this subsection shall be decided not later

11 than 90 days after the date on which the appeal is

12 filed.

13 ‘‘(4) THIRD-PARTY COMMENTS ON APPEAL.—

14 Any person who participated in the public comment

15 process concerning a decision or action that is the

16 subject of an appeal brought pursuant to this sub17 section may file written comments with respect to

18 such appeal.

19 ‘‘(5) OFFICIAL DECIDING APPEAL.—An appeal

20 brought pursuant to this subsection shall be heard

21 and decided by an appropriate and impartial official

22 of the Federal Government, other than the official

23 who made the determination or carried out the ac24 tion that is the subject of the appeal.
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1 ‘‘(6) PAYMENT OR MITIGATION AFTER AP2 PEAL.—A landowner or any other person who has

3 filed an appeal under this subsection shall not be re4 quired to pay a penalty or perform mitigation or res5 toration assessed under this section or section 309

6 until after the appeal has been decided.’’.

7 SEC. 15. MAPPING AND PUBLIC NOTICE REQUIREMENTS.

8 Section 404 is amended by adding at the end the fol9 lowing new subsection:

10 ‘‘(y) MAPPING AND PUBLIC NOTICE REQUIRE11 MENTS.—

12 ‘‘(1) The Corps of Engineers shall, within 90

13 days after the enactment of this Act, provide the

14 court of each county, parish, or borough in which

15 Federal jurisdictional wetlands may be located, a no16 tice for posting near the property records of the

17 county, parish, or borough. Such notice shall: (i)

18 state that Federal jurisdictional wetlands may be lo19 cated in the county, parish, or borough, (ii) provide

20 an understandable explanation of how Federal juris21 diction over wetlands is determined, (iii) describe the

22 requirements and restrictions of the wetlands regu23 latory program under this section, and (iv) provide

24 instructions on how to obtain a delineation and clas25 sification of wetlands.
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1 ‘‘(2) When the delineation or classification of a

2 property pursuant to this section becomes final, the

3 Secretary shall file a copy of the delineation, includ4 ing the classification of the wetland if any are

5 present, with the records of the property in the local

6 courthouse, and the Secretary shall serve a copy of

7 the delineation determination on every property

8 owner of record and any person with a recorded

9 mortgage or lien on the property.

10 ‘‘(3) The corps and the EPA shall file notice of

11 enforcement actions taken with respect to private

12 property in the property records of such property.

13 ‘‘(4) As the National Biological Survey com14 pletes the National Wetlands Inventory, the maps

15 prepared in that inventory shall be provided to the

16 court for posting in the counties, parishes, and bor17 oughs that are covered by the maps.’’.

18 SEC. 16. REGULATORY PROGRAM FOR ALASKA.

19 (a) Section 404(b) (33 U.S.C. 1344(b)), as amended,

20 is further amended by adding at the end the following new

21 paragraph:

22 ‘‘(5) For permits for the discharge of dredged

23 or fill material within the State of Alaska, the guide24 lines issued under this subsection—
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1 ‘‘(A) shall not include requirements or

2 standards for compensatory mitigation of ad3 verse impacts, but may include requirements for

4 non-compensatory mitigation of adverse im5 pacts,

6 ‘‘(B) shall include requirements or stand7 ards for minimization of impacts, and

8 ‘‘(C) may include standards or require9 ments for avoidance of impacts, except that the

10 permit applicant shall not be required to estab11 lish that upland alternative sites do not exist.’’.

12 (b) STANDARDS FOR GENERAL PERMITS IN ALAS13 KA.—Section 404(e) (33 U.S.C. 1344(e)), as amended by

14 section 10, is further amended by inserting the following

15 new paragraph after paragraph (5):

16 ‘‘(6) Notwithstanding the requirements of para17 graphs (1) and (2), the Secretary shall issue a gen18 eral permit for discharges of dredged and fill mate19 rial in Alaska. Such general permit shall contain re20 quirements that provide a similar degree of protec21 tion for navigable waters as the protection required

22 by the other provisions of subsection (b)(5).’’.

23 (c) Section 404 (33 U.S.C. 1344) is amended by add24 ing at the end thereof:

25 ‘‘(z) ALASKA NATIVE CORPORATION LANDS.—
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1 ‘‘(1) IN GENERAL.—Lands conveyed to, selected

2 by, or owned by Alaska Native Corporations pursu3 ant to the Alaska Native Claims Settlement Act,

4 Public Law 92–203, as amended, shall be ‘economic

5 base lands’.’’

6 ‘‘(2) PERMIT CONSIDERATIONS.—Regarding

7 permit decisions for economic base lands, in addition

8 to the requirements in subsection (a) and (b), the

9 Secretary shall—

10 ‘‘(A) balance the standards and policies of

11 this Act against the obligations of the United

12 States to allow economic base lands to be used

13 beneficially to create and sustain economic ac14 tivity;

15 ‘‘(B) give substantial weight to the social

16 and economic needs of Alaska Natives; and

17 ‘‘(C) account for regional differences,

18 abundance, and functions of wetlands.

19 ‘‘(3) GENERAL PERMITS.—Regarding rural

20 Alaska Native villages as defined in section 3(c) of

21 the Alaska Native Claims Settlement Act, Public

22 Law 92–203 (43 U.S.C. 1602(c)), the Secretary

23 shall issue general permits for disposition of dredge

24 and fill material for critical infrastructure, including

25 water and sewer systems, airports, roads, commu-
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1 nication sites, fuel storage sites, landfills, housing,

2 hospitals, medical clinics, schools, and other commu3 nity infrastructure in rural Alaska villages without a

4 determination that activities authorized by such a

5 general permit cause only minimal adverse environ6 mental effects when performed separately and will

7 have only minimal cumulative adverse effects on the

8 environment.

9 ‘‘(4) OTHER CONSIDERATION.—The Secretary

10 shall consult with and provide assistance to Alaska

11 Native Corporations and the State of Alaska regard12 ing promulgation and administration of policies and

13 regulations under this section.’’.

14 SEC. 17. DEFINITIONS.

15 Section 502 of the Federal Water Pollution Control

16 Act (33 U.S.C. 1362) is amended by adding at the end

17 thereof the following new paragraphs:

18 ‘‘(21) The term ‘wetlands’ means those areas

19 that are inundated or saturated by surface or

20 ground water at a frequency and duration sufficient

21 to support, and that under normal circumstances do

22 support, a prevalence of vegetation typically adapted

23 for life in saturated soil conditions. Wetlands gen24 erally include swamps, marshes, bogs, fens, potholes,

25 playa lakes, vernal pools, and similar areas.
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1 ‘‘(22) The term ‘creation of wetlands’ means an

2 activity that brings a wetland into existence at a site

3 where it did not formerly exist.

4 ‘‘(23) The term ‘enhancement of wetlands’

5 means any activity that increases the functioning of

6 existing wetlands.

7 ‘‘(24) The term ‘wetlands functions’ means the

8 roles wetlands serve, including flood water storage,

9 flood water conveyance, groundwater discharge, ero10 sion control, wave attenuation, water quality protec11 tion, scenic and aesthetic use, food chain support,

12 fisheries, wetlands plant habitat, aquatic habitat,

13 and habitat for wetland-dependent wildlife.

14 ‘‘(25) The term ‘incidentally created wetlands’

15 means lands that exhibit wetlands characteristics

16 sufficient to meet the criteria for delineation of wet17 lands, where one or more of such characteristics is

18 the unintended result of human induced alterations

19 of hydrology.

20 ‘‘(26) The term ‘maintenance,’ when referring

21 to wetlands, means activities undertaken to assure

22 continuation of a wetland or the accomplishment of

23 project goals after a restoration or creation project

24 has been completed, including water level manipula25 tions and control of non-native plant species.
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1 ‘‘(27) The term ‘normal farming, silviculture,

2 aquaculture and ranching activities’ means normal

3 ongoing practices identified as such by the Secretary

4 of Agriculture, in consultation with the Cooperative

5 Extension Service for each State and the land grant

6 university system and agricultural colleges of the

7 State, taking into account existing practices and

8 such other practices as may be identified in con9 sultation with the affected industry or community.

10 ‘‘(28) The term ‘prior converted cropland’

11 means land that was both manipulated (drained or

12 otherwise physically altered to remove excess water

13 from the land) and cropped before December 23,

14 1985, to the extent that such land no longer exhibits

15 significant wetlands functions.

16 ‘‘(29) The term ‘restoration,’ when referring to

17 wetlands, means an activity undertaken to return a

18 wetland from a disturbed or altered condition with

19 lesser acreage or fewer functions to a previous condi20 tion with greater wetlands acreage or functions.

21 ‘‘(30) The term ‘temporary impact’ or ‘tem22 porary effect’ means the disturbance or alternation

23 of wetlands caused by activities under circumstances

24 in which, within three years following the commence25 ment of such activities, such wetlands—
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1 ‘‘(A) are returned to the conditions in ex2 istence prior to the commencement of such ac3 tivity; or

4 ‘‘(B) display conditions sufficient to ensure

5 that without further human action, such wet6 lands will return to the conditions in existence

7 prior to the commencement of such activity.

8 ‘‘(31) The term ‘linear utility facility’ means a

9 continuous conveyance, such as a pipeline, cable,

10 line, or wire, used for the transmission, gathering, or

11 distribution of electric power, natural gas, oil, or

12 water.’’.

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